<p> Verity, C.J. This is an appeal from a judgment of Coussey, J., in the consolidated Transferred Suits Nos. 3 and 4 of 1944. By an additional ground of appeal it is alleged that the trial was contrary to the terms of a Consent Order made by the Chief Justice on the 4th day of April, 1945, whereby the suits were to be consolidated and tried by M’Carthy, J., and that this Order was never discharged or amended by any subsequent Order at any time to warrant another Judge trying the cases.</p><p>It appears that on the 2nd February, 1945, the case No. 4/1944 came before Coussey, J., and was adjourned to the 5th April for hearing. On the 4th April, however, both cases came on before the Chief Justice who made an Order of which the following are the operative terms:-</p><p>“By agreement 3 and 4, 1944, to be consolidated and transferred to the, Land Division to be tried before Mr. Justice M’Carthy ...” The cases came before M’Carthy, J.. in the Land Division on 31st May, 1945, and were adjourned to a subsequent date. Thereafter they came before more than one other Judge, were adjourned from time to time, and finally came on for hearing in the Land Division before Coussey, J., who proceeded to the hearing and entered judgment on the 11th March, 1946.</p><p>It is submitted on behalf of the appellant, who was called upon first to argue this ground of appeal, that the Order of the Chief Justice of 4th April, 1945, was an Order of Transfer under section 28 of the Courts Ordinance (Cap. 4), that by reason thereof no other Judge was competent to try the cases and the trial before Coussey, J., was therefore a nullity. Counsel asked , therefore, that the cases be sent back for trial in accordance with the Order Justice.</p><p>It is beyond doubt that the Chief Justice has power under the section to transfer any cause from one Judge to another Judge and it must be equally beyond doubt that, if he has done so, then it is not competent for any Judge to try a cause so transferred other than the Judge to whom it has been transferred until such Order is satisfied or varied. Were it otherwise, an Order of transfer would be of no avail. It is submitted on behalf of the respondent, however, that no formal order of transfer was ever drawn up under the seal of the Court as required by section 29 of the Ordinance, and, moreover, that no such order was ever addressed to Coussey, J., who therefore had no knowledge of the Order. It is further submitted that in such case it cannot be held that Coussey, J., had no jurisdiction to try the cases, and that the trial before him was therefore valid.</p><p>In the first place, this Court would not be prepared to hold that the failure immediately to draw up a formal Order addressed by the Chief Justice to the Chief Justice from whom the cases were transferred to M’Carthy, J., invalidates the Order renders it inoperative. In the second place, there is no requirement in the Ordinance for the Order to be addressed to any Judge other than he from whom the case is to be transferred in this case the Chief Justice himself. The procedure prescribed by section 31 is that notice of the Order shall be given to the Judge from whom the case is transferred and that the necessary documents shall be transmitted to the Judge to whom it is transferred. It is not contemplated that any other Judge will be concerned in the matter and no provision is therefore made for the communication of the Order to any other Judge.</p><p>It was further submitted on behalf of the respondent that the appellant having appeared before Coussey, J., without protest and having proceeded with the hearing before that Judge, has waived what Counsel describes as an “irregularity” and cannot now be heard in objection thereto. It does not appear it to us, however, that parties, either on one side or the other, and in this case on both sides can evade an Order of the Court by failure to object to its non-observance. for such a course would enable parties to suits to set at defiance any Order of proceeding which the Court might make.</p><p>It is unfortunate that, in the present instance, no one concerned therewith appears to have observed the existence of the Chief Justice’s Order of the 4th April, 1945, when the cases came on for hearing in February, 1946. The cases were set down for hearing before Coussey, J., without regard to the Order, neither Counsel for the plaintiff nor Counsel for the defendant, who had themselves consented to the Order, raised the point, and it would appear that the Learned Judge himself was not advised as to the terms of the Order by which the cases were consolidated and transferred to the Land Divison.</p><p>Whether or not the Chief Justice intended by his Order of the 4th April to make formal transfer of the cases from himself to M’Carthy, J., under the provisions of section 28 of the Ordinance, we have no doubt that the Order, in so far as it is effective, derives its effect from the provisions of that section and that, in such case, Coussey, J., was not competent to entertain the hearing of these cases.</p><p>The matter does not rest there, however. By his Order of the 4th April the Chief Justice gave his reason, not for the transfer of the case from himself (which he is not required to do) but for transfer to M ‘Carthy, J., and not to Coussey, J., for the terms of the Order expressly declare that the cases are to be “tried before Mr. Justice M’Carthy as Mr. Justice Coussey is already aware of the facts”.</p><p>It is plain in the opinion of the Chief Justice it was undesirable that the cases should be heard by a Judge who was already seised of the facts thereof. </p><p>Nevertheless Mr. Justice Coussey being unaware of the Order and we are sure without the slightest desire either to infringe the terms thereof or to follow any course which could be considered undesirable or improper, proceeded to the hearing, and we have now to determine what was the effect of his so doing and what Order this Court should make. It been held that it is essential that in matters which come before the Courts justice should not only be done but should appear to have been done and it is for that reason it is well establish that no case should be tried nor any proceedings be heard before any person exercising judicial functions who has any interest or bias in relation to those proceedings. Where the interest is of a pecuniary nature it has been held that the law raises a conclusive presumption of bias (R. v. Sunderland JJ. (1)). In R. v. Mayor and JJ. of Deal, Ex. parte Curling (2), Field, J.. said” No doubt it is a general principle of our law that magistrates or persons in a judicial position ought to be quite clear of any interest in a case brought before them,” and added the interest or bias which disqualifies is an interest or bias in the particular case, something reasonably likely to bias or influence their minds in the particular case “.</p><p>There is no question in the present instance of the learned Judge having any interest in the particular case either pecuniary or otherwise, but can it said that a foreknowledge of the facts of the case is not “something reasonably likely to bias or influence” his mind.? We think not, and while we would not wish to be understood moment as expressing the view that the learned Judge did allow or would have allowed his previous knowledge of the facts consciously to affect his judgment thereon, it is our opinion that, in trying these cases of the facts of which he was already aware, as appear from the Order of the 4th April, 1945, the learned Judge followed a course, no doubt unwittingly, which was inconsistent with that principle which requires that justice should not only be done, but that it should be apparent also that it has been done.</p><p>As to the course which this Court should pursue in the circumstances, it appears to be clearly laid down by authority. Where interest or bias is shown to exist the person purporting to exercise judicial functions is disqualified in the particular case and his judgment therein is voidable (Dimes v. Grand Junction Canal Proprietors (3)). In our opinion, in the present case, the judgment entered in the Court below must, on this ground, be set aside and the case be tried before another Judge in pursuance of the Order of the 4th April or of such other Order as may be made by the Chief Justice in amendment thereof.</p><p>No other ground of appeal was argued before us and we have therefore given no consideration to the merits of the cases. The appeal is allowed on this ground only. In view of the fact that both parties by their acquiescence in breach of the Chief Justice’s Order contributed to the present unfortunate position, there will be no order as to costs.</p><p>Appeal allowed.</p>